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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Monday, June 09, 2008

Letter from Comcast's counsel

Dear Mr. Greenwald:

We are writing on behalf of our client, Comcast Cable Communications, in response to your request that Comcast run a television spot regarding U.S. Rep. Chris Carney, sponsored by the so-called "Blue America PAC." Since this spot would not be considered a candidate "use" under Section 315 of the Communications Act (47 USC 315), Comcast would face potential liability for any defamation contained in the spot.

As you know, the spot contains the following audio regarding Rep. Carney: "He wants to pardon phone companies who broke the law and gave thousands to his campaign." That audio is spoken over a video image showing the logos of the following entities: AT&T, the National Cable and Telecommunications Association ("NCTA"), Verizon, Embarq and Comcast. A Monopoly-type "Get out of jail free" card is then superimposed over the images of the logos. Thus, the express language of the spot combined with the images shown implies that the entities whose logos are shown "broke the law" and face either "jail" or a potential "pardon," both of which would be applicable to a criminal conviction.

In support of the statement that these entities "broke the law," you have provided links to the website of the Electronic Frontier Foundation ("EFF") and, in the case of Verizon, the ACLU, "demonstrating that listed telecoms are defendants in the lawsuits based on illegal spying." For the proposition that "[t]hese telecoms broke the law with their illegal spying," you provide a link to your own opinion blog in Salon.com. None of the links provided implicate NCTA in any way.

A ll of the lawsuits for which you have provided links are civil suits that would not result in criminal liability, even if decided against the defendants. More importantly, however, there have been no adjudications in any of these lawsuits against the defendants , including Verizon and AT&T. As I am sure you know, the mere filing of a lawsuit, whether civil or criminal, is not equivalent to a finding of liability or wrongdoing by the defendant unless so decided by a judge following prosecution of the litigation (or, in the case of a criminal complaint, a guilty plea by the defendant). In fact, the EFF website shows that the civil suits against Comcast (and other carriers) ha ve been dismissed: http://www.eff.org/files/filenode/att/mdl3.pdf .

Under the circumstances, the spot you have provided is factually incorrect and potentially defamatory against the entities shown. Under Pennsylvania law, a false allegation of criminal wrongdoing is considered to be defamation per se. While Comcast tries to accommodate all requests to run political advertising, regardless of the position taken (even if critical of Comcast itself), the company cannot accept a spot that is false and defamatory. Accordingly, we have advised Comcast to decline your request to run this spot, and they have concluded that they have no choice but to do so . If you believe you have additional documentation that would alter our conclusion, or if you care to submit an alternate spot that is factually correct, you are, of course, free to do so.